In the upcoming month, the Supreme Court of the United States faces a pivotal decision regarding a seemingly straightforward yet monumental question: Does the presidency fall under a constitutional provision that bars insurrectionists from federal office?
The case in question, Trump v. Anderson, challenges a ruling from the Colorado Supreme Court disqualifying former President Donald Trump, the current frontrunner for the 2024 Republican nomination, based on Section 3 of the 14th Amendment. Enacted after the Civil War, this provision prohibits individuals who “engaged in insurrection” from holding public office.
However, the Colorado Supreme Court’s decision overturned the ruling of a trial judge in Denver. Both courts agreed that Trump “engaged in insurrection” during the January 6, 2021, Capitol attack. The trial judge, however, contended that Section 3 doesn’t apply to Trump because the provision doesn’t explicitly mention the president.
This question is just one of several complex and rarely litigated issues the U.S. Supreme Court must address in this case. The justices’ decision will carry immense significance, delving into the heart of constitutional interpretation.
While the question may seem absurd on its face, considering the presidency’s exclusion from a provision aimed at preventing ex-Confederates from federal power, the lack of explicit mention of the presidency in Section 3 raises compelling arguments. Originalism, a prominent judicial philosophy favoring interpretation in line with the framers’ thinking, may play a central role in the court’s decision.
The absence of direct mention of the presidency in the clause, which specifies other federal positions, adds complexity to the interpretation. Some argue that this exclusion implies the presidency is not covered by Section 3, emphasizing a lack of historical evidence supporting this inclusion. Conversely, proponents of including the presidency contend that the broad term “any office” was intentionally comprehensive and did cover the presidency, even without specific mention.
Mark Graber, a professor at the University of Maryland Francis King Carey School of Law supporting the view that Section 3 applies to Trump, likens the situation to the “George Washington five-finger problem.” Just as no one explicitly noted the number of fingers on George Washington’s right hand, some argue that the presidency’s inclusion was so unquestionable at the time that it passed without explicit mention.